Nassar et al v. Jackson et al
ORDER: Nassar is once again offered reduced damages in the amount of $245,639.38. Should Nassar refuse this offer, the Court will schedule a second trial, limited to the issue of the value of Nassar's salary and benefits during the term of his three-year contract. Nassar has up to and including thirty days from the entry date of this Order to file notice stating whether he accepts the Court's offer of remittitur. Signed by Judge Susan Webber Wright on 3/27/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RAY NASSAR and GENA SMITH,
individually and in her official
capacity as a Hughes School Board
Member, ET AL.
NO: 3:11CV00133 SWW
Plaintiffs Ray Nassar (“Nassar”) and Gena Smith commenced this employment
dispute against the Hughes School District (“District”) and others claiming, inter alia,
that the District terminated their employment contracts without providing a hearing in
violation of the Due Process Clause. A jury found for Nassar and Smith on all claims,
and on appeal, the District contested Nassar’s $340,000 award for economic damages on
his due process claim. The Eighth Circuit vacated Nassar’s award and remanded with
instructions to allow Nassar to elect between a remitted award or a new trial. Pursuant to
the Eighth Circuit’s mandate, the Court offered Nassar remitted damages in the amount of
$245,639.38. Nassar has now filed notice that he rejects the offer of remittitur, and he
“requests a bench trial on the issues of front pay and attorneys’ fees.” ECF No. 178, ¶ 2.
For reasons that follow, Nassar’s request for a bench trial on the issues of front pay and
attorneys’ fees is denied, and Nassar has thirty days from the entry date of this order to
reconsider the Court’s offer of remittitur.
The evidence at trial established that Nassar served as the District’s superintendent
of schools pursuant to a three-year contract, which the District terminated when the
contract had almost two years remaining. As noted by the Court of Appeals, Nassar’s
economic expert, Dr. Ralph Scott, testified at trial that the value of the salary and benefits
remaining on Nassar’s contract at the time of his termination was $245,639.38. Dr.
Scott also testified as to the present value of Nassar’s “future losses,” which he likened to
“front pay,” and he opined that the present value of seven years of front pay for Nassar
amounted to $283,557.77.
On appeal, the District argued that Nassar’s $340,000 award improperly exceeded
the only demonstrated value of Nassar’s damages (lost salary and benefits during the term
of contract), and Nassar argued that the award properly included front pay. The Eighth
Circuit vacated the Nassar’s $340,000 award, noting that front pay, an equitable remedy,1
may be awarded only by a court. The Court further held that, even assuming that front
pay is available as a due process remedy and that the District consented to a jury
determination on front pay, the evidence did not support post-contract damages:
Front pay is an equitable remedy, which a trial court in its discretion may award in an
employment discrimination case to make the injured party whole. See Smith v. World Ins. Co.,
38 F.3d 1456, 1466 (8th Cir. 1994). “Front pay consists of monetary damages that may be
awarded in lieu of reinstatement in situations where reinstatement is ‘impracticable or
impossible.’” Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 641 (8th Cir. 1997)(quoting
Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 674 (8th Cir.1995)).
Based on the evidence presented by Nassar's economist, the award necessarily
included lost salary and benefits beyond the term of Nassar's contract. The
award thus assumes that Nassar's contract would have been renewed if he had
received a proper hearing. Nassar's brief, however, points us to no evidence
suggesting such renewal. This is not a case in which Nassar's contract had
been renewed time and time again. Rather, this is a case from a generally
at-will employment state, in which Nassar's contract had been renewed only
once and in which board members were openly hostile to Nassar. Without
some evidence that the contract would have been renewed but for the denial
of due process, the evidence of post-contract damages was irrelevant, and the
front-pay award was improper, whether consented to or not.
Nassar v. Jackson, No. 13-1953, 2015 U.S. App. LEXIS 3367, at *10 n.4 (8th Cir. March
3, 2015)(internal citations omitted). The Court of Appeals concluded:
Without the improper front pay, the only evidence of the value of Nassar's
salary and benefits during the term of his contract was the economist's
estimate of $245,639.38. The district court should offer remittitur to that
amount. See Racicky v. Farmland Indus., Inc., 328 F.3d 389, 400 (8th
Cir.2003).2 If Nassar does not consent to remittitur, the court should conduct
a new trial on this issue. See id.
Id. Nassar, No. 13-1953, 2015 U.S. App. LEXIS 3367, at *10 (emphasis added).
In accordance with the Eighth Circuit’s explicit instructions, in the event that
Nassar rejects the offer of remittitur, a second trial will be limited to the value of
Nassar’s salary and benefits during the term of his contract. Under the law of the case
In Racicky v. Farmland Indus., Inc., 328 F.3d 389 (8th Cir.2003), a dairy farmer sued a
cow feed supplier for negligence, claiming that feed he had purchased from the defendant injured
his dairy cows. A jury found for the farmer, and awarded him lost market value and lost profits.
On appeal, the Eighth Circuit held that the farmer provided insufficient evidence for the jury to
determine lost profits with reasonable certainty, and reversed the damage award. The Court of
Appeals instructed the trial court as follows: “We reverse the district court’s judgment on
damages and remand for a new trial on lost market value damages only, unless the [plaintiff],
within thirty days after the issuance of our mandate, consent to a remittitur of the damage award .
. . ” Racicky, 328 F.3d at 400(emphasis added).
doctrine, this Court is bound on remand to adhere scrupulously to the Eighth Circuit’s
mandate and may not resettle issues already settled by the appellate court’s opinion. See
Klein v. Arkoma Production Co., 73 F.3d 779, 784 (8th Cir. 1996)(citations omitted).
Here, the Eighth Circuit found, as a matter of law, that Nassar is not entitled to a front pay
remedy. Because it appears that Nassar rejected the offer of remittitur based on a
misunderstanding of the proper scope of a second trial, the Court will afford him an
opportunity to reconsider.
IT IS THEREFORE ORDERED that Nassar is once again offered reduced
damages in the amount of $245,639.38. Should Nassar refuse this offer, the Court will
schedule a second trial, limited to the issue of the value of Nassar’s salary and benefits
during the term of is three-year contract. Nassar has up to and including thirty (30) days
from the entry date of this order to file notice stating whether he accepts the Court’s offer
IT IS SO ORDERED THIS 27TH DAY OF MARCH, 2015.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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